Main menu

Monthly Archives: September 2010

Post navigation

There was a different spirit of 76 present at DeVos Place in Grand Rapids, as W. Anthony Jenkins was sworn in today by Michigan Supreme Court Chief Justice Marilyn Kelly as 76th president of the State Bar of Michigan.

As we reported in the Aug. 30, 2010, edition, he is going to make diversity and inclusion part of his platform for his 2010-11 term. In fact, he’ll do his best to put words into action this evening at the Bar’s Diversity Pledge reception, where attorneys of all backgrounds are being asked to sign a pledge saying they will promote a diverse workplace.

His immediate predecessor, Charles R. Toy, however, is still going be a fixture at the Bar. Not only is he on the Past Presidents Advisory Council, he’s going to work with the soon-to-premiere Master Lawyers Section in matching up members of the section (attorneys who are age 60 and older or have 30 or more years’ Bar membership) with new members of the Bar and law school students as part of the seasoned attorneys’ pro bono work.

And he’ll be going on tour in the next few months to Milwaukee and Washington, D.C., among other cities, as part of his day job as associate dean of career and professional development at The Thomas M. Cooley Law School.

“I’m not going to DisneyWorld,” he quipped after Jenkins’ swearing-in ceremony.

Considering, however, that as Bar president he got to travel across the state to meet with bar groups, judges, attorneys and legal organizations, it’s likely been just as thrilling as a run on Space Mountain.

The saga of Andrew Shirvell and his vendetta against a college student continues, as his boss, Michigan Attorney General Mike Cox, appeared on CNN’s Anderson Cooper 360 to explain his decision not to fire Shirvell. [Video of the interview at the link]

While Cox didn’t exactly defend Shirvell, calling him a bully, he said Shirvell has the right to publish the things he did under the First Amendment.

Democratic candidate for AG David Leyton has called for his Republican counterpart, Bill Schuette, to join him in calling for Shirvell to be fired.

Attorney General Mike Cox changed his stance Thursday, suspending Andrew Shirvell after the assistant attorney general attracted national attention for a controversial blog that ridicules and denounces a University of Michigan student leader for his gay advocacy, religious beliefs and character.

The suspension came a day after Cox told CNN he didn’t intend to fire Shirvell, citing civil service rules that protect government employees from being "fired willy-nilly" for exercising their rights of free speech.

In her report to attendees of the 2010 Solo & Small Firm Institute — as part of the 2010 State Bar of Michigan annual meeting in Grand Rapids — Janet Welch, executive director of the State Bar of Michigan, was upfront about having bad news and good news.

First, the bad, which is the “beyond bad” state of the state, something that affects the court system and, in turn, lawyers.

The state’s per average capital income is the best way to measure how things stand in Michigan, she said, but there are grim numbers involved. In 1970, Michigan was 13th in the nation, but in 2000 it dropped to 19th, and in 2008, sank to 38th.

And citing the House Fiscal Agency’s ranking of Michigan in income growth, “We’re not only dead last, but we’re so far beyond 49th, we can’t even see 49th.”

For that, she turned to the SBM’s Judicial Crossroads Taskforce, a 13-month-old initiative to study and recommend ways for the court system to be saved and advanced in the wake of declining state revenues.

Though the task force’s final meeting isn’t for another few weeks, and the report’s results aren’t public yet, Welch weighed in on what could be recommended.

“In broadest terms, I think their report will call for a court system that’s simpler, more flexible, and more based on evidence-based results,” she said. “It will recognize that in some areas of the states we have more judges than needed, and in other areas, we don’t have enough. And it will say that we will need to measure that by an objective, evidence-based measure.”

One question the task force has asked is whether there’s something the court system can do to handle business disputes that can be perceived as friendly to the business community to help them feel better about staying in Michigan and, in effect, encourage other businesses to come here.

For that, she said, one committee in the task force is recommended a three-year private business docket in three of the biggest Michigan counties, where two or three judges would handle all business cases. She noted that other states that have tried such a program have had great results.

Finally, she said that the task force believes cost savings can only happen with better information systems in court, particularly via statewide e-filing in all state courts.

“The tools exist right now to make the court system more convenient, more accessible, more efficient … . We’re wasting money by not spending money to make that happen,” she said.

So, wasn’t there something mentioned about good news?

Well, Welch did say that the state of the SBM is “good — truly good.”

Given the reserves that SBM has built up by managing the way it delivers services to its members, and based on the current rate of consumption, she said that the SBM won’t have to raise dues for another eight more years.

That’s relief for a state where more and more lawyers are struggling professionally, but where dues are in the bottom percentage compared to other states. Welch pointed to that the fact there is no mandatory continuing legal education requirements as another advantage of practicing in Michigan.

She said the secret is being tech savvy, thus saving administrative costs where they count, and SBM members’ volunteer time helping offset things. An example of the latter, she added, is the launch of the Master Lawyer Section, which will replace the Senior Lawyers Section, and will allow the more experienced members of the bar to participate in pro bono programs and mentoring for younger attorneys.

Also, something she said that’s of “critical” importance is the upcoming triennial economics of law practice survey, which will be sent to bar members in October via e-mail and the SBM website.

Welch pointed to the Michigan Supreme Court’s 2008 Smith v. Khouri attorney fee ruling, for which the Court said the SBM’s previous survey was the most important resource in determining award of attorney fees.

But the Court also cited limitations within the survey, so Welch said the SBM has streamlined the new survey, which will be tailored in two different forms — one for private practice members, the other for all other members. The results will be published in early 2011, and there will be drawings and giveaways to help bolster participation.

You’re a state official. This is a college student. What are you doing here?

Shirvell said he’s got nothing personal against him. He said he’s doing it as a private citizen off of work time. Then he should explain how he knows so much about the “criminal” records of Chris Anderson and friends.

I’ve got to admit: Keeping Up With The Candidates is more fun when the candidates hate each other.

Which is why the race for governor has been rather lackluster? Rick Snyder and Virg Bernero have been so darn affable that Bernero can show up at a Snyder event and rather than being chased out by a torch and pitchfork wielding posse, he’s invited up on stage to address the group.

Even their TV ad campaigns are only lowering themselves to claims like “Virg Bernero spends too much on pencils.” Or something. Really? Where are the questions of someone’s citizenship? Or whether some distant relative is gay or Muslim or received a Christmas card from Nancy Pelosi? What have you done with our election process?!

But fear not, while the Snyder/Bernero race has turned into a buddy comedy starting John Travolta and Michael Keaton, other races, most notably the Congressional ones, feature the mudslinging and name-calling we’ve come to expect out of these things.

Most notably, the race for U.S. Congressman Gary Peters’s seat. Peters and his opponent, Andrew “Rocky” Raczkowski, are like two bad sports talk radio partners: they simply disagree on everything, no matter what the issue. (Unless that issue is immigration, a hot button issue in which pandering to either side can seriously jeopardize your campaign. The latest way of explaining your position? Heighten protection on the border! [Appeal to Tea Party]. Crack down on employers who hire illegals! [Appeal to Hispanics]Peters and Raczkowski seem to agree on that.).

The two candidates have become cartoon caricatures of their respective parties. Peters gets painted as a flaming liberal who kowtows to the “socialist” liberal agenda and Raczkowski is deemed a tin-foil hat wearing ultra right-wing lunatic.

Case in point: this Freep summation of their positions on the only four issues in this election:

Both candidates want the federal government to be more aggressive in protecting the borders, and they want penalties enforced for employers who hire illegal immigrants.

Peters has released an ad detailing a South Dakota court case involving Raszkowski’s company, Star Tickets. The company is being sued by a concert promoter for allegedly “grossly underestimated the number of tickets sold to a concert,” causing $6 million in damages.

In response, Raszkowski has accused Peters of being Gary Peters.

He’s also filed a defamation lawsuit concerning the ad. (The suit seems awfully frivolous since the ad reports of a court case that exists.)

Justice Robert P. Young Jr. has raised more money than his three closest contenders combined in the Michigan Supreme Court race.

According to the Michigan Campaign Finance Network, Young, a Republican, has raised some $514,000, with newly named candidate Justice Alton T. Davis a distant second with $194,000.

Among the most interesting facts in the report is the amount of early support the Republican party has given Young and fellow Republican Mary Beth Kelly – $61,000 and $60,000 respectively – while the Democratic party has contributed less than $7,000 to Denise Langford Morris, and has not yet reported any contribution to Davis.

amended MCR 3.973, 3.975 and 3.976 to require a court to maintain a local foster care review board report in the court’s confidential social file, and ensure that all parties have had the opportunity to review the report before the court enters a dispositional order, dispositional review order, or permanency planning order. Courts also may include recommendations from the report in their orders under the new language. ADM File No. 2010-09.

amended MCR 6.201, which governs discovery in criminal proceedings, to include electronically recorded statements among the materials that must be furnished to other parties. ADM File No. 2008-38.

amended MCR 1.108, which governs computation of time periods prescribed or allowed by court orders or statutes, to include any day that a court has ordered a court closure. The time period would be extended to the next day the court is open. ADM File No. 2009-30.

proposed an amendment to MCR 2.002, which clarifies that if a party files a frivolous or malicious action, a court may deny the indigent party’s ability to proceed in forma pauperis. ADM File No. 2008-12.

According to the CBA, “The Department of Education litigates hardship discharges vigorously, and will move to dismiss for failure to exhaust administrative remedies. Find out how to avoid these issues in your cases.”

The featured speaker is Dawn Scaniffe, General Attorney, Office of the General Counsel Department of Education.

On Nov. 11, the American Bankruptcy Institute, in partnership with the Detroit Consumer Bankruptcy Association, is sponsoring The Sixth Annual Detroit Consumer Bankruptcy Conference.

The conference features an all-star line-up of bankruptcy judges and practitioners.

From the ABI:

This year’s program will again address the topics that consumer practitioners need: the latest from the Supreme Court and the lower courts and what’s left of good faith in bankruptcy, as well as an extensive series of breakout sessions on exemptions, lien -stripping, tax issues, means testing, asset cases, claims against creditors, objections to claims, legal writing and oral argument, and mortgage-modification news.

A special highlight will be our keynote luncheon speaker, former ABI Resident Scholar Prof. Lois Lupica of the University of Maine School of Law, who is investigating fees in consumer cases nationwide.

William J. Danhof of Lansing, attorney and principal in the law firm of Miller, Canfield, Paddock and Stone, PLC. Danhof is reappointed as the ADB’s chair for a term ending Oct. 1, 2011.

ADB vice-chair Thomas G. Kienbaum of Birmingham, attorney and member of the law firm of Kienbaum, Opperwall, Hardy & Pelton, PLC. Kienbaum is reappointed to a second full term as a member of the ADB for a term ending Oct. 1, 2013. He is also reappointed vice-chairperson for a term ending Oct. 1, 2011.

ADB member Rosalind E. Griffin, M.D., of Farmington Hills, psychiatrist and assistant professor at the Wayne State University School of Medicine. Griffin is appointed to a first full term as a member of the ADB for a term ending Oct. 1, 2013.

The ADB appoints three-attorney panels, composed of volunteers, which hear attorney misconduct matters and recommend sanctions against attorneys who violate ethics rules. The ADB also may review a hearing panel’s decision and can affirm or alter the level of discipline.

The ADB consists of six attorneys and three non-attorneys appointed by the Michigan Supreme Court; the appointees serve on a volunteer basis.

NEW YORK, N.Y. – September 23, 2010 - As the first Monday in October looms and the U.S. Supreme Court and its newly confirmed justice, Elena Kagan, look ahead to hearing new arguments, The Harris Poll asked Americans their awareness and opinions about some of the court’s practices. Although the Supreme Court heads one of the three branches of the U.S. government, two in five Americans (42%) say they are not knowledgeable about the Supreme Court confirmation process.

These are some of the results of The Harris Poll of 2,775 adults surveyed online between August 9 and 16, 2010 byHarris Interactive.

Almost three in five (58%) Americans say they are knowledgeable about the process, with 14% saying they are very knowledgeable and 44% saying they are somewhat knowledgeable. However, Americans,65 and older (74%) and men (71%) are more likely to say they are knowledgeable on this compared to younger Americans, those 18-33, and women (both 46%).

During the confirmation process, however, a strong majority of Americans agree that nominees to the Supreme Court should be required to answer questions on specific issues (81%) and how they would vote in specific court cases, both past cases and hypothetical ones (63%) while just over half feel they should answer questions about their personal life (54%). Older Americans seem to be more strongly in favor of some of these types of interviews than are younger Americans, though. Over four in five (84%) of both Americans aged 46-64 and 65 and older agree that nominees should be required to answer questions about their views on specific issues, compared to three-quarters of those aged 18-33 who say the same (76%). Older Americans are also more likely to agree that nominees should be required to answer questions about their personal life (58% of those 46-64, and 68% of those 65 and older), compared to less than half of younger Americans (47% of those 18-33 and 48% of those 34-45), who say the same.

Older Americans are not the only ones who feel strongly about what should be required during these pre-confirmation interviews. Over three-quarters of Republicans (76%) say nominees should be required to say how they would vote in specific court cases, including both past and hypothetical ones, compared to 54% of Democrats and 63% of Independents who say the same. Similarly, 71% of Republicans think nominees should be required to answer questions about their personal life, compared to less than half of Democrats (49%) and Independents (49%) who think it’s important.

Type of Supreme Court Justice

When asked what type of person Americans would most like to see on the Supreme Court, half (51%) said someone who keeps their personal opinions of “right” and “wrong” to themselves and makes decisions strictly based on the letter of the law and the Constitution. One-third of Americans say they would prefer an independent thinker who uses creativity and an understanding of modern circumstances to inform their legal rulings (32%), just 6% say they would want someone who uses their own values or moral compass to guide their decisions, and one in ten are not at all sure what type of person they prefer (11%).

Looking by political party, a clear majority of Republicans (67%) prefer justices who make decisions based strictly on the letter of the law and the Constitution. Democrats are more split-45% say they prefer an independent thinker who uses creativity and an understanding of modern circumstances, while 38% say they prefer someone who makes decisions based strictly on the letter of the law.

Although all Americans don’t agree about all Supreme Court practices, they do say that the Court is a crucial governing body for the success of the United States (69%). In a sometimes rare show of similar opinion concerning policy, Republicans (71%), Democrats (74%), and Independents (70%) all agree on this point. Interestingly, women show more uncertainty on this, as 65% say that the Supreme Court is a crucial governing body for the success of the United States, compared to three-quarters of men (75%) who say the same. Just one in ten (10%) women say that the Supreme Court is not necessary-decision making power should lay within the state courts, and over one-quarter of women are not at all sure (26%).

So what?

Each time there is a Supreme Court confirmation, the debate begins anew as to whether these are productive or not. The confirmation process for Elena Kagan was no exception as she sustained rounds of hearings prior to being confirmed. One argument is the Senate should innately “trust” a President’s nomination and just provide “advice and consent.” However, the American public seems fairly strongly in favor of these interviews, at least on certain topics. Americans also broadly approve of the Supreme Court, yet many say they are not knowledgeable about its practices. This may call for better education in schools on the Supreme Court, which appears may have fallen off in recent years, considering the numbers of younger Americans’ knowledge, or lack thereof, compared to that of older Americans.

Methodology

This Harris Poll was conducted online within the United States between August 9 to 16, 2010 among 2,775 adults (aged 18 and over). Figures for age, sex, race/ethnicity, education, region and household income were weighted where necessary to bring them into line with their actual proportions in the population. Propensity score weighting was also used to adjust for respondents’ propensity to be online.

All sample surveys and polls, whether or not they use probability sampling, are subject to multiple sources of error which are most often not possible to quantify or estimate, including sampling error, coverage error, error associated with nonresponse, error associated with question wording and response options, and post-survey weighting and adjustments. Therefore, Harris Interactive avoids the words “margin of error” as they are misleading. All that can be calculated are different possible sampling errors with different probabilities for pure, unweighted, random samples with 100% response rates. These are only theoretical because no published polls come close to this ideal.

Respondents for this survey were selected from among those who have agreed to participate in Harris Interactive surveys. The data have been weighted to reflect the composition of the adult population. Because the sample is based on those who agreed to participate in the Harris Interactive panel, no estimates of theoretical sampling error can be calculated.

The MiLW Website

The MiLW Daily Alert

Get the latest Michigan legal news and information delivered to your email inbox, courtesy of Michigan Lawyers Weekly. Sign up for the MiLW Daily Alert. Its free and informative. Click here for more information.